EXHIBIT 10.33(k)


 


AMENDMENT
NUMBER ELEVEN TO

LOAN AND SECURITY AGREEMENT 


 


THIS AMENDMENT NUMBER ELEVEN TO LOAN
AND SECURITY AGREEMENT (this “Amendment”), is effective as of
March 31, 2004, between WELLS FARGO FOOTHILL,
INC., a California corporation (“Foothill”), formerly known as
Foothill Capital Corporation, with a place of business located at 2450 Colorado
Avenue, Suite 3000 West, Santa Monica, California 90404, and IMAGE
ENTERTAINMENT, INC., a California corporation (“Borrower”), with its
chief executive office located at 9333 Oso Avenue, Chatsworth, California
91311, with reference to the following facts:


 


WHEREAS, Borrower
has requested that Foothill amend that certain Loan and Security Agreement
dated as of December 28, 1998 (as amended, restated, supplemented or
otherwise modified from time to time, the “Agreement”), between Foothill and
Borrower as set forth herein; and


 


WHEREAS, subject to
the satisfaction of the conditions set forth herein, Foothill is willing to so
amend the Agreement in accordance with the terms and conditions hereof.


 


NOW, THEREFORE, in
consideration of the above recitals and the mutual promises contained herein,
Foothill and Borrower hereby agree as follows:


 


SECTION 1.                            DEFINED TERMS.


 


Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.


 


SECTION 2.                            AMENDMENTS TO
THE AGREEMENT.


 


(a)                                  Section 1
of the Agreement is hereby amended by adding the following definition in
alphabetical order:


 


“Eleventh Amendment Fee” has the meaning set
forth in Section 2.10(j).


 


(b)                                 Section 2.10
of the Agreement is hereby amended by deleting the word “and” at the end of
clause (h), by deleting the period at the end of clause (i) and replacing it
with “, and”, and by adding the following new clause (j):


 


“(j)                               Eleventh
Amendment Fee.  An amendment
fee in the amount of $5,000 (the “Eleventh Amendment Fee”), which
amendment fee shall be fully earned and non-refundable as of the date hereof,
and shall be charged to Borrower’s Loan Account on such date.”


 


(c)                                  Section 6.12(b)
of the Agreement is hereby amended and restated in its entirety as follows:


 


“(b)                           EBITDA.  Borrower shall maintain EBITDA, for each
fiscal period set forth below, of not less than the amount indicated below
opposite such fiscal period:


 

















 


	
  for
  the immediately preceding three-month period ending 03/31/04

  	
   

  	
  $

  	
  1,105,000

  	
   

  
	
  for
  the immediately preceding six-month period ending 06/30/04

  	
   

  	
  $

  	
  1,324,000

  	
   

  
	
  for
  the immediately preceding nine-month period ending 09/30/04

  	
   

  	
  $

  	
  2,182,000

  	
   

  
	
  for
  the immediately preceding twelve-month period ending 12/31/04

  	
   

  	
  $

  	
  3,552,000

  	
   

  
	
  for
  the immediately preceding twelve-month period ending 03/31/05

  	
   

  	
  $

  	
  4,034,000

  	
   

  
	
  for
  the immediately preceding twelve-month period ending 06/30/05

  	
   

  	
  $

  	
  4,218,000

  	
   

  
	
  for
  the immediately preceding twelve-month period ending 09/30/05

  	
   

  	
  $

  	
  4,271,000

  	
   

  



 


SECTION 3.                            REPRESENTATIONS
AND WARRANTIES.  


 


Borrower
hereby represents and warrants to Foothill that (a) the execution, delivery,
and performance of this Amendment and of the Agreement, as amended by this
Amendment, are within its corporate powers, have been duly authorized by all
necessary corporate action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of its charter or
bylaws, or of any contract or undertaking to which it is a party or by which
any of its properties may be bound or affected, and (b) this Amendment and the
Agreement, as amended by this Amendment, constitute Borrower’s legal, valid,
and binding obligation, enforceable against Borrower in accordance with its
terms.


 

















 


SECTION 4.                            CONDITIONS
PRECEDENT TO AMENDMENT.  


 


The
satisfaction of each of the following, unless waived or deferred by Foothill in
its sole discretion, shall constitute conditions precedent to the effectiveness
of this Amendment:


 


(a)                                  The
representations and warranties in this Amendment, the Agreement as amended by
this Amendment, and the other Loan Documents shall be true and correct in all
respects on and as of the date hereof, as though made on such date (except to
the extent that such representations and warranties relate solely to an earlier
date);


 


(b)                                 No
Default, Event of Default, or event which with the giving of notice or passage
of time would constitute an Event of Default shall have occurred and be
continuing on the date hereof, nor shall result from the consummation of the
transactions contemplated herein; 


 


(c)                                  No
injunction, writ, restraining order, or other order of any nature prohibiting,
directly or indirectly, the consummation of the transactions contemplated
herein shall have been issued and remain in force by any governmental authority
against Borrower or Foothill;


 


(d)                                 All
other documents, agreements, instruments, and legal matters in connection with
the transactions contemplated by this Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to
Foothill and its counsel; and


 


(e)                                  Foothill
shall have received the Eleventh Amendment Fee in full in immediately available
funds, which Eleventh Amendment Fee shall be paid by Borrower to Foothill by
being charged to Borrower’s Loan Account as of the date hereof.


 


SECTION 5.                            FURTHER
ASSURANCES.  


 


Borrower
shall execute and deliver all agreements, documents, and instruments, in form
and substance satisfactory to Foothill, and take all actions as Foothill may
reasonably request from time to time fully to consummate the transactions
contemplated under this Amendment and the Agreement, as amended by this
Amendment.


 


SECTION 6.                            MISCELLANEOUS.


 


(a)                                  Upon
the effectiveness of this Amendment, each reference in the Agreement to “this
Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to
the Agreement shall mean and refer to the Agreement as amended by this
Amendment.


 


(b)                                 Upon
the effectiveness of this Amendment, each reference in the Loan Documents to
the “Loan Agreement”, “thereunder”, “therein”, “thereof” or words of like
import referring to the Agreement shall mean and refer to the Agreement as
amended by this Amendment.


 

















 


(c)                                  This
Amendment shall be governed by and construed in accordance with the laws of the
State of California.


 


(d)                                 This
Amendment can only be amended by a writing signed by both Foothill and
Borrower.


 


(e)                                  This
Amendment may be executed in any number of counterparts and by different
parties on separate counterparts, each of which, when executed and delivered,
shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Amendment. 
Delivery of an executed counterpart of this Amendment by telefacsimile
shall be equally as effective as delivery of an original executed counterpart
of this Amendment.  Any party delivering
an executed counterpart of this Amendment by telefacsimile also shall deliver
an original executed counterpart of this Amendment but the failure to deliver
an original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.


 


(f)                                    This
Amendment reflects the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, before the date hereof.


 


[Signature Page Follows]


 

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be duly executed as
of the date first written above.


 


 


	
   

  	
  IMAGE ENTERTAINMENT, INC.,

  a California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jeff M. Framer

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO FOOTHILL, INC.,

  a California corporation, formerly known as Foothill

  Capital Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Trent Smart

  	
   

  
	
   

  	
  Title:

  	
  Vice President